IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 26^th day of February, 2021

Present:  Sri. Manulal V.S. President

Sri. K.M. Anto, Member

C C No. 235/2018 (filed on 02-11-2018)

Petitioner                                 :         Harikrishnan K.

                                                          S/o. Karunakara Pillai,

                                                          Krishna Theertham,

                                                          Ponnaramthotam,

                                                          Mavelikkara, Alappuzha.

                                                          (Adv. Jayaprakash P.V.)

                                                                   Vs.

Opposite party                        :         The Divisional Manager,

                                                          United India Insurance Co. Ltd.

                                                          Geetha Trade Centre, M.C. Road,

                                                          Nagambadam, Kottayam – 686 001.

          (Adv. Agi Joseph)

O  R  D  E  R

Sri. K.M. Anto, Member

The complainant’s case is as follows: The complainant had taken a family midi-claim policy bearing no 1005002815 P 114687050 from the opposite party for a sum insured of Rs.3Lakhs which was valid from 7.3.2016 to 6.3.2017.While so, the wife of the complainant underwent laparoscopic surgeries for gall bladder stone removal, ventral hernia and sleeve gastrectomy at Sunrise Hospital Ernakulam. She was admitted there as IP from 29.8.16 to

1.9.16. After discharge when the complainant approached the opposite party

for settling the claim only the bills for the first claim of surgical management

of gall bladder was settled. For surgical procedure of gall bladder stone removal Rs.1 Lakh, for ventral hernia it is 1.5 Lakhs and for sleeve gastrectomy also1.5 Lakhs were incurred. But the complainant claimed only to the extent of ventral hernia and gallbladder stone procedures as both comes under the scope of the mediclaim policy. The complainant sent a registered letter to the op on 3.4.2017 only to receive a reply that the 2^nd claim for ventral hernia:metabolic syndrome the procedures undergone are for the complications of metabolic syndrome/obesity and further obesity management by sleeve gastrectomy. Sleeve gastrectomy is a surgical weight loss procedure in which stomach is reduced by 15% of its original size; by surgical removal of a large portion of the stomach along the greater curvature and this claim is not payable “The complainant had given a certificate from consultant surgeon                              Dr. Madhukara Pai regarding that issue to the TPA of opposite party. The complainant is claiming only for two surgical procedures i.e. gallbladder stone

removal and ventral hernia. Out of these two only the claim of gall bladder stone removal was settled and the claim of ventral hernia is not settled.                       The complainant sent legal notices to the opposite party and their TPA on the date16.01.2018 reply was given by the opposite party. The nonpayment is a clear deficiency of service from the part of the opposite party.

The opposite party appeared on receipt of notice and submitted version through their Deputy Manager stating that the complaint is barred by limitation as the wife of the complainant was discharged on 9.9.16 but the complaint was filed on 2.11.18.The policy was issued subject to the terms and conditions of the policy. The claim for the ventral hernia does not come under the purview of the policy issued to the complainant. Ventral hernia: metabolic syndrome: are the procedures undergone is for the complications of metabolic syndrome/obesity and further obesity management by sleeve gastrectomy. Sleeve gastrectomy is a surgical weight loss procedure in which stomach is reduced by 15% of its original size; by surgical removal of a large portion of the stomach along the greater curvature and this claim is not payable “hospital treatment is not for any treatment defined as per the terms of the policy conditions. The claim for the surgical procedure for gall bladder stone removal was paid by the opposite party. The complainant has to prove the claim with cogent evidence that ventral hernia was not secondary to obesity or previous surgeries. The complainant has not given any certificate as alleged to explain the procedures for ventral hernia. The opposite party has given proper reply to the complainant’s claim. The original petition is bad for non joinder of necessary parties. The person who underwent for alleged treatment was not made a party in this petition. Hence the petition is not maintainable and liable to be dismissed. As the claim is out of the purview of the policy the opposite party cannot satisfy the claim. There is no deficiency of service on the part of the opposite party.

The complainant filed proof affidavit along with Exhibits A1 to A8 and OP filed proof affidavit along with Exhibit B1 to B3 in the evidence part.

On a detailed examination of the above complaint, version and evidence, we are of the opinion to frame the following issues.

1. Whether the opposite party effectively rebutted the allegation of deficiency in service with cogent evidence?

2. If so whether the complainant is entitled for compensation?

Point no 1 and 2

The complainant’s allegation is that even though he took a mediclaim policy for his entire family, when he placed a claim for the treatment of his wife for the Gall bladder stone removal, Ventral Hernia and sleeve gasteroctomy out of which the payment for gall bladder stone removal only was approved by the opposite party. According to the complainant ventral hernia also comes under the purview of the conditions of the policy but the opposite party wilfully rejected the claim. The opposite party put a contention that ventral hernia and sleeve gasterectomy were procedures in connection with obesity management and metabolic syndrome and  hence not payable under the policy conditions. In Exbit B2, the repudiation letter the opposite party rejected the claim by stating that: “the 2^nd claim for Ventral Hernia: Metabolic Syndrome : are the procedures undergone is for the complications of metabolic syndrome / obesity and further obesity management by sleeve gastrectomy.  Sleeve gastrectomy is a surgical weight-loss procedure in which stomach is reduced by 15% of its original size, by surgical removal of a large portion of the stomech along the greater culvuture. And this claim in not payable”. According to the complaint and Exbit A5,the discharge summary, the patient was admitted with the complaints of swelling and pain in umbilical region and recent weight gain.               In the surgery notes it is noted as : “ventral hernia repair, laparoscopic cholecystectomy with sleevegastrectomy done under general anesthesia.  Cholelithiasis lap cholecystectomy done Stump double clipped.  Ventral hernia sub umbilical.  Laparoscopic sleevegastrectomy done.  Methylene blue instilled to check leak.  10x15 cm Protene mesh kept, track fixed, 15 mm port closed with port closure needle”.  The complainant was diagnosed with ventral hernia, gall stone decease with metabolicsyndrome”. Exhibit A8 is the letter issued by Dr.Madhukara Pai Consultant general & Lap.Surgeon, Sunrise hospital certifying that Mrs. Vidhu Krishnan, the wife of the complainant herein 37 years, Hospital no 210236 underwent laparoscopic ventral hernia repair + laparoscopic cholecystectomy + lap sleeve gastrectomy for ventral hernia + Cholelithiasis and metabolic syndrome. There is no finding to suggest ventral hernia was secondary to obesity or previous surgeries”.

The opposite party’s main contention is that the surgery of sleeve gastrectomy is for a metabolic syndrome usually done for fat reduction and hence this is exempted as per the policy conditions. On a detailed examination, we find that ventral hernia is such a condition which necessitates surgery either open or laporoscopic. Though the opposite party contends that the surgery for ventral hernia is for a metabolic syndrome and is not payable, they have not produced any authoritative text to prove that the ventral hernia is only a process to correct metabolic syndrome and fat reduction. On the other side exbt A8, the doctor clearly states that the patient had to undergo laporoscopic ventral hernia repair.

In Exhibit A4 and B1 Clause 1.2.1, which is none other than the policy and terms and conditions.

Expenses in respect of the following specified illness/surgeries will be restricted as detailed below:

So we find that the opposite party is liable to pay the actual charge or 25% of the sum insured whichever is less. Here in this case the total sum insured is 3 Lakhs. The expenses incurred for the surgery of ventral hernia as per Exhibit A6 hospital bills is 90,000/- under the head Lap mesh plasty. The opposite party is liable to pay the 25% of 3,00,000/- as per the contract and that is Rs.75,000/-. Hence the point no.1 is found accordingly. The complainant having paid the premium without default is entitled to get the reimbursement on time. As the opposite party failed to consider the claim of the complainant properly the complainant had undergone severe stress and mental agony which is to be compensated. So point no 2 also is found against the opposite party.                         The opposite party took a contention as the complaint is bad for non-joinder as the wife of the complainant who was the patient was not made a party. She was impleaded subsequently. Hence we find that for the above said reasons the complaint is to be allowed and the opposite party is directed to

       1. Pay Rs. 75,000/- to the complainant along with 9% interest per annum from the date of repudiation ie.9.10.2017 till the date of payment.

       2. Pay Rs. 25,000/-towards compensation.

      Pronounced in the Open Commission on this the 26^th day of February, 2020.

Sri. K.M. Anto, Member                 Sd/-

Sri. Manulal V.S. President             Sd/-

Appendix

Exhibits marked from the side of complainant

A1  :  Copy of letter by petitioner to opposite party

A2  :  Letter dtd.09-10-17 by opposite party to petitioner

A3  :  Copy of lawyers notice dtd.16-01-18  to opposite party

A4  :  Original policy bearing No.1005002815P114687050 issued by opposite

           party

A5  :  Copy of discharge summary

A6  :  copy of medial bill

A7  :  Copy of claim form

A8  :  Copy of medical certificate dtd.05-09-16 by Dr. D. Madhukara Pai M.S.

Exhibits marked from the side of opposite party

B1  :  Copy of policy with terms and conditions

B2 :   Copy of  letter dtd.09-10-17 by opposite party to petitioner

B3  :  Copy of discharge summary

                                                                                                By Order

                                                                               Senior Superintendent